Respect for the Rights of the Parties to a Trial, Notably in Defence

This section examines the rights of the parties to trial. Some of these rights overlap with the rights discussed in the previous section; for instance, the right to have your case brought before a competent, independent and impartial tribunal is a general right of all parties whose rights are affected. There is also an overlap with the institutional efficiency requirement discussed in the next section, which implies an individual right of a party to a judgement within a reasonable time or without undue delay; the right to expeditious hearings.

One has to make a clear and explicit distinction between general rights of all parties on the one hand, discussed below, and the specific rights of those charged with a criminal offence, discussed hereafter. It may be argued that courts have greater latitude when dealing with civil cases than with criminal cases, where the procedures and individual guarantees are of a stricter nature.

The general rights include such rights as:

The right to equality of arms; to be equally treated as other parties before the court or tribunal

The right to a fair and public hearing

The right to a competent, independent and impartial tribunal established by law

The right to a judgement within reasonable time or without undue delay

The right to effective remedies

Of the underlying principles of ‘fairness’ regarding fair trial is the principle of ‘equality of arms’ that is not set out in the articles on fair trial themselves. This important principle establishes that each party to a proceeding should have an equal opportunity to present his case and that neither party should enjoy any substantial advantage over his opponent. The European Court has found violations of Article 6 (1) in a number of cases addressing the principle of equality of arms. In Dombo Beheer B.V. v. The Netherlands (Application No. 14448/88, Judgement of 27 October 1993), the Court found a violation of Article 6(1) where, in a dispute over an oral agreement allegedly entered into at a meeting involving only the two principals, only one of the principals was allowed to testify in the proceedings, placing the other at a ‘substantial disadvantage’. In the early cases ofOfner and Hopfinger v. Austria before the European Commission (Application Nos. 524/59 and 617/59 (joined), Decision of 19 December 1960, Yearbook 6, p. 680) the applicants claimed that the principle of equality of arms was violated by the presence of the general procurator and the absence of the defendant or his counsel at Supreme Court proceedings.

The principle of equality must be guaranteed throughout the pre-trial and trial stages, as every suspected or accused person has the right not to be discriminated against in the way the investigation or trial is conducted or in the way the law is applied to them. The principle of equality also means that every human being must have equal access to the courts in order to claim his or her rights. In particular, women must have access to courts on an equal footing with men, in order to be able to claim their rights effectively.

Explicit in all conventions is the right to a fair and public hearing. That subject is discussed in the case below. In June 1949, plots of agricultural land owned by the applicant’s father were expropriated without payment of compensation. In 1957, ownership of some of these plots was assigned to natural persons. The applicant inherited his father’s estate in 1977 and in 1991 a new ‘Land Ownership Act’ came into force that provided that under certain conditions property confiscated without compensation could be returned to its former owners or their heirs. If such property was in the possession of natural persons, the former owners or their heirs could – subject to certain exceptions – only claim the assignment of other equivalent property or financial compensation. The applicant complained under Article 6(1) of the European Convention that he did not enjoy a public hearing before an independent and impartial tribunal in the restitution proceedings since when deciding on his appeal the Prague Municipal Court had upheld an administrative decision but did not hold a public hearing in the case.

Malhous v. The Czech Republic

European Court of Human Rights

Application No. 33071/96

Judgement of 12 July 2001

Keywords: public hearing - fair trial - rights of parties

[?]

B. The Court’s assessment

55. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6§ 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see, for example, the Diennet v. France judgement of 26 September 1995, Series A no. 325-A, pp. 14–15,§ 33).

56. In the present case the applicant was in principle entitled to a public hearing as none of the exceptions laid down in the second sentence of Article 6§ 1 applied (see the Ha°kansson and Sturesson judgement of 21 February 1990, Series A no. 171-A, p. 20,§ 64). These exceptions were not invoked in the domestic proceedings. In particular, the Constitutional Court which inter alia examined the question of the lack of a public hearing in the present case did not refer to the exceptions. Nor did the Government invoke the second sentence of Article 6§ 1 of the Convention.

57. The Court notes that the only hearing held in the case took place on 12 October 1994 before the Mladá Boleslav Land Office. According to the record of that hearing, the applicant’s restitution claims were considered in his presence and in the presence of representatives of both legal persons who had been asked to restore to the applicant the confiscated property which had earlier belonged to his father. However, the Land Office cannot be considered as an authority which satisfies the requirements of independence necessary for a tribunal within the meaning of Article 6§ 1 of the Convention. The Court observes that the Land Office is an autonomous department of the District Office which is charged with carrying out local state administration under the control of the Government (see paragraphs 40-43). The appointment of the head of the District Office is controlled by the executive and its officers are subordinated to him (see also the Kadubec v. Slovakia judgement of 2 September 1998, Reports of Judgements and Decisions 1998-VI, p. 2531,§ 57). In any event, the hearing before this administrative authority was not public, being open only to the parties and their representatives.

58. It is true that the Land Office’s decisions of 12 October 1994 were subject to judicial review and that the applicant appealed to the Municipal Court and to the Constitutional Court. However, neither of these tribunals held a public hearing. As far as the proceedings before the Municipal Court are concerned, the Court observes that the applicant did not expressly ask for a public hearing to be held. The question therefore arises whether the applicant should be regarded as having waived his right to a hearing (see the Ha°kansson and Sturesson judgement, previously cited, pp. 20-21,§ 67; Schuler-Zgraggen v. Switzerland judgement of 24 June 1993, Series A no. 263, pp. 19-20,§ 58; Zumtobel v. Austria judgement of 21 September 1993, Series A no. 268-A, p. 14,§ 34).

59. The Court notes that the Municipal Court did not base its decision not to hold a hearing on the applicant’s failure to request one. It rather examined ex officio whether the conditions set forth in section 250(f) of the Code of Civil Procedure for dispensing with a hearing were met, concluding that this indeed was the case (see paragraph 14). The Constitutional Court confirmed the Municipal Court’s conclusion. In these circumstances, the Court cannot attach decisive importance to the applicant’s failure explicitly to request a hearing, but has to proceed to an independent evaluation of the question, having the requirements of Article 6 as the point of reference.

60. In this respect the Court notes that the Municipal Court’s jurisdiction was not strictly limited to matters of law, but also extended to the assessment of whether the facts had been correctly established by the administrative authority. The Municipal Court could, if necessary, also take evidence (see paragraph 35). The submissions of the applicant to the Municipal Court in turn (see paragraph 13) indicate that his appeal was capable of raising also factual issues (see the Fredin v. Sweden judgement of 23 February 1994, Series A no. 283, p. 11,§ 22). Without questioning the Municipal Court’s conclusion that the facts had been correctly established by the administrative authority, the Court concludes, taking into account also what was at stake for the applicant, that in these circumstances Article 6§ 1 required an oral hearing before a tribunal.

61. The Court further notes that in the subsequent administrative proceedings the Land Office, which was bound by the judgement of the Municipal Court of 31 May 1995, did not hold a further hearing with the parties of the case. The Court considers that although the applicant could have requested a judicial review of the Land Office’s decision of 25 July 1995, it is unrealistic to assume that in such review proceedings, concerning an administrative decision based on the Municipal Court’s earlier findings, the court would have granted an oral hearing for the purpose of examining essentially the same questions which it had previously found to fall within the scope of application of section 250(f). Moreover, the Constitutional Court in its above decision, which was adopted in full knowledge of the Land Office’s decision of 25 July 1995, did not suggest that different considerations might apply as regards a possible judicial review of that latter decision. In these circumstances, the Court cannot attach weight to the allegedly different character of the two administrative decisions of the Land Office underlined by the Government (see paragraph 46). It recalls that section 250(f) of the Code of Civil Procedure was still in force at the relevant time and the Constitutional Court indeed found its application in the applicant’s case to be unobjectionable.

62. The Court further observes that the proceedings before the Constitutional Court were also conducted without a public hearing. However, these proceedings, limited to the examination of questions of constitutionality, did not involve a direct and full determination of the applicant’s civil rights in the restitution proceedings. A public hearing in those proceedings could not, therefore, have remedied the lack of a hearing at the decisive stage of the proceedings where the merits of the applicant’s restitution claims were determined. Finally, the Court finds that the applicant was not obliged to introduce judicial proceedings under section 8 of the Land Ownership Act, the Court being concerned in the present case only with the proceedings under section 9 of the Act which were actually pursued.

63. Consequently, the Court holds that there has been a breach of Article 6§ 1 on account of the lack of a public hearing before an independent and impartial tribunal in the restitution proceedings complained of by the applicant.

Comment

Some elements of the present case should be underlined. The first is the fact that this case demonstrates how closely related the various rights of parties to a civil case are. The absence of a public hearing immediately affects the concept of fairness. It also implies the absence of a degree of equality of arms as the review by the municipal court took place solely based on the documents submitted by the Executive. The absence also affects the rights of access to court.

A second element that deserves attention is the finding of the European Court, in para. 62, that a fair and public hearing must involve a full hearing of all elements in the case. The proceedings before the Constitutional Court were limited to the examination of questions of constitutionality and therefore did not involve a direct and full determination of the applicant’s civil rights in the restitution proceedings. Such proceedings are therefore seen as insufficient.

The European Court has consistently held that at least in one stage of the proceedings there must be a public hearing where the court concerned can take into account, through oral hearings, what is at stake for the parties concerned. Such hearings should not be strictly limited to matters of law, but should also extend to the assessment of whether the facts had been correctly established.

Rights of those who are charged with a criminal offence

Respect for and protection of the individual rights of parties in a criminal trial is essential for the quality of the administration of justice by courts. The ICCPR and the three major regional conventions include articles on fair trial with specific (sub) article(s) spelling out several individual rights of those charged with a criminal offence. While there are differences in terms of content, the African Charter being relatively compact in its description, none contains a complete list. The supervision mechanisms have gradually elaborated on the individual rights at a fair trial. Moreover, in the case of the European Convention, additional rights were added in the seventh protocol.

Major individual rights of those who are charged with a criminal offence, in addition to the rights that apply to all parties as noted in the previous paragraph, are the following:

The right to presumption of innocence;

Freedom from compulsory self-incrimination, not to be forced to testify against oneself; the right to remain silent;

The right to know the accusation; the right to be notified of the charges in a language one understands;

The right to adequate time and facilities to prepare a defence; proper examination of material and witnesses;

The right to legal assistance; adequate assistance, if needed, of lawyers and translators;

The right to examine witnesses;

The right to an interpreter;

The right to appeal in criminal matters;

The rights of juvenile offenders;

No punishment without law;

Ne bis in idem; the right not to be tried or punished twice; and

The right to compensation for miscarriage of justice.

The Human Rights Committee dealt with, inter alia, the rights of the accused in General Comment 13 below.

General Comment No. 13 - Article 14 Right to fair trial

Human Rights Committee

Adopted on 13 April 1984

Keywords: fair trial - rights of the accused - criminal justice

[?]

7. The Committee has [?] even observed that the presumption of innocence, which is fundamental to the protection of human rights, is expressed in very ambiguous terms or entails conditions which render it ineffective. By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial.

8. Among the minimum guarantees in criminal proceedings prescribed by paragraph 3 [of Article 14 ICCPR], the first concerns the right of everyone to be informed in a language which he understands of the charge against him (subpara. (a)). [?] Article 14 (3) (a) applies to all cases of criminal charges, including those of persons not in detention. The Committee notes further that the right to be informed of the charge “promptly” requires that information is given in the manner described as soon as the charge is first made by a competent authority. In the opinion of the Committee this right must arise when in the course of an investigation a court or an authority of the prosecution decides to take procedural steps against a person suspected of a crime or publicly names him as such. The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally or in writing, provided that the information indicates both the law and the alleged facts on which it is based.

9. Subparagraph 3 (b) provides that the accused must have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. What is “adequate time” depends on the circumstances of each case, but the facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel. When the accused does not want to defend himself in person or request a person or an association of his choice, he should be able to have recourse to a lawyer. Furthermore, this subparagraph requires counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter.

11. [?] subparagraph 3 (d). The Committee has not always received sufficient information concerning the protection of the right of the accused to be present during the determination of any charge against him nor how the legal system assures his right either to defend himself in person or to be assisted by counsel of his own choosing, or what arrangements are made if a person does not have sufficient means to pay for legal assistance. The accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defences and the right to challenge the conduct of the case if they believe it to be unfair. When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary.

12. Subparagraph 3 (e) states that the accused shall be entitled to examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. This provision is designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.

13. Subparagraph 3 (f) provides that if the accused cannot understand or speak the language used in court he is entitled to the assistance of an interpreter free of any charge. This right is independent of the outcome of the proceedings and applies to aliens as well as to nationals. It is of basic importance in cases in which ignorance of the language used by a court or difficulty in understanding may constitute a major obstacle to the right of defence.

14. Subparagraph 3 (g) provides that the accused may not be compelled to testify against himself or to confess guilt. In considering this safeguard the provisions of article 7 and article 10, paragraph 1, should be borne in mind. In order to compel the accused to confess or to testify against himself, frequently methods which violate these provisions are used. The law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable.

15. In order to safeguard the rights of the accused under paragraphs 1 and 3 of article 14, judges should have authority to consider any allegations made of violations of the rights of the accused during any stage of the prosecution.

The relevance of respect for the rights of the parties to the trial is illustrated in the case of Loayza Tamayo v. Peru below. Maria Elena Loayza was suspected of being a member of the Tupac Amaru group and accused of terrorism. She was subjected to various violations of the rights of the accused and detained for a long time. This case is also discussed under the prohibition of torture see What is Torture and Ill-Treatment?.

f. That Ms. María Elena Loayza-Tamayo was tried -together with other defendants in a cumulative trial- for the crime of treason in the military courts; that on February 25, 1993, Police File Nº 049-DIVICOTE 3-DINCOTE was opened for that crime; that she was subsequently brought for trial before the Special Naval Court and, by decision of that Court, was released, was held at the Army Veterinary Hospital from February 27 to March 3, 1993; on March 5, 1993 she was acquitted by the Special Naval Court; on April 2, 1993, she was convicted by the Special Naval Court Martial; on August 11, 1993, she was acquitted of the crime of treason by the Special Tribunal of the Supreme Council of Military Justice, and on September 24, 1993, the Full Chamber of the Special Supreme Military Tribunal upheld Ms. María Elena Loayza-Tamayo’s acquittal; that the proceedings were summary. [?]

g. That Ms. Loayza-Tamayo remained in detention from September 24, 1993, the date on which the Full Chamber of the Special Military Tribunal upheld her acquittal, until October 8 of that year, when she was bound over for trial in the civil courts. [?]

h. That Ms. María Elena Loayza-Tamayo was later tried in the civil court system for the crime of terrorism; that on October 8, 1993, the Forty-third Criminal Court of Lima initiated the proceedings; that on October 10, 1994, the faceless Special Tribunal of the civil court system sentenced her to twenty years in prison, and on October 6, 1995, the Supreme Court of Justice upheld that sentence. [?]

i. That military justice is also meted out to civilians in Peru; that Ms. María Elena Loayza-Tamayo was tried in both the military and the civil court system by “faceless judges”; that it was DINCOTE that classified as unlawful the acts which were used as grounds in both jurisdictions. [?]

j. That the military court system followed a practice of obstruction of the right of persons accused of treason to be represented by a lawyer of their own choosing. [? ]

[?]

l. That during the period when Ms. María Elena Loayza-Tamayo was detained there was a widespread practice in Peru of cruel, inhuman and degrading treatment during criminal investi-gations into the crimes of treason and terrorism. [?]

XII [assessment of the arguments and evidence]

49. The Court now turns to the arguments and evidence submitted by the parties, and deems that:

[?]

b. It is for this Court to determine whether that detention was carried out in conformity with Article 7 of the Convention and, if so, whether the state of emergency and suspension of guarantees imposed in the Department of Lima and the Constitutional Province of Callao as of January 22, 1993, is germane to the instant case.

50. Article 27 of the American Convention governs the suspension of guarantees in time of war, public danger, or other emergency that poses a threat to the independence or security of a State Party, in which eventuality the latter must inform the other States Parties, through the Secretary General of the OAS, “of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.” While it is true that personal liberty is not expressly included in those rights, the suspension of which is, in any event, not authorized, it is equally true that the Court has found that writs of habeas corpus and of “amparo” are among those judicial remedies that are essential for the protection of various rights whose derogation is prohibited by Article 27(2) and that serve, moreover, to preserve legality in a democratic society [and that] the Constitution and legal systems of the States Parties that authorize, expressly or by implication, the suspension of the legal remedies of habeas corpus or of “amparo” in emergency situations cannot be deemed to be compatible with the international obligations imposed o these States by the Convention (Habeas Corpus in Emergency Situations) (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights ), Advisory Opinion OC-8/87 of January 30, 1987. Series A No. 8, paras. 42 and 43). ?the judicial guarantees essential for the protection of the human rights not subject to derogation, according to Article 27(2) of the Convention, are those to which the Convention expressly refers in Articles 7(6) and 25(1), considered within the framework and the principles of Article 8, and also those necessary to the preservation of the rule of law, even during the state of exception that results from the suspension of guarantees (Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights), Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 38.)

52. The Court considers that, pursuant to Article 6 of Decree-Law Nº 25.659 (crime of treason), Ms. María Elena Loayza-Tamayo did not have the right to file a petition for any guarantee to safeguard her personal liberty or challenge the lawfulness of her detention (supra, para. 46.c), irrespective of whether guarantees had or had not been suspended.

53. While Ms. María Elena Loayza-Tamayo was held incommunicado and during her subsequent trial, she was unable to avail herself of guarantee remedies, which, in the view of this Court, may not be suspended.

54. With all the more reason, this Court deems it unlawful that Ms. María Elena Loayza-Tamayo was kept in detention after the final judgement handed down by the military court on September 24, 1993, and until the order was issued for her to be bound over for trial was issued in the civil courts on October 8 of that year. The trial proceedings show that Article 6 of Decree-Law Nº 25.659 (crime of treason) was also applied during that period.

55. The Court therefore finds that Peru violated Ms. María Elena Loayza-Tamayo’s right to personal liberty and the guarantee of judicial protection enshrined, respectively, in Articles 7 and 25 of the American Convention.

[?]

XIV

59. The Commission claimed that in the trials conducted in the military criminal courts for the crime of treason and in the civil courts for the crime of terrorism, against Ms. María Elena Loayza-Tamayo, the Peruvian State violated the following rights and guarantees of due process enshrined in the American Convention: Right to a hearing by an Independent and Impartial Tribunal (Article 8(1)); Right to be Presumed Innocent (Article 8(1) and 8(2)); Right to Full Equality during the proceedings (Article 8(2)); Right to Defend Oneself (Article 8(2)(d)); Right not to be Compelled to be a Witness Against Oneself and not to be Subject to Coercion of any Kind (Articles 8(2)(g) and 8(3)); and the Judicial Guarantee not to be subjected to Double Jeopardy (Article 8(4)).

60. The Court deems it unnecessary to rule on the Commission’s argument that the military tribunals that tried Ms. María Elena Loayza-Tamayo lacked independence and impartiality, requirements embodied in Article 8(1) of the Convention as prerequisites of due process, inasmuch as Ms. María Elena Loayza-Tamayo was acquitted by that military court and, therefore, the possible failure to meet those requirements did not cause her legal injury in that regard, irrespective of the other violations which will be examined in the following paragraphs of this Judgement.

61. First and foremost, in applying Decree-Laws Nº 25.659 (crime of treason) and Nº 25.475 (crime of terrorism) enacted by the State, Peru’s military courts violated Article 8(1) of the Convention with regard to the requirement to be tried by a competent court. Indeed, in rendering a final judgement acquitting the defendant Ms. María Elena Loayza-Tamayo of the crime of treason, the military court lacked jurisdiction to keep her in detention, let alone to declare in the verdict of acquittal of last instance, that “there being evidence of the commission of the crime of terrorism, it orders the case file to be remitted to the civil courts, and the defendant to be placed in the custody of the competent authority.” In so doing, the military tribunal acted ultra vires, usurped jurisdiction, and arrogated to itself the powers of the regular judicial organs, inasmuch as Decree-Law Nº 25.475 (crime of terrorism) stipulates that the aforesaid crime is to be investigated by the National Police and the Ministry of the Interior, and tried in the civil courts. Further, the regular judicial authorities were the only organs with the power to order the detention and imprisonment of the persons accused. As may be seen from the foregoing, the aforementioned Decree-Laws Nº 25.659 (crime of treason) and Nº 25.475 (crime of terrorism) separated the jurisdiction of the military and civil courts, assigning the crime of treason to the former, and the crime of terrorism to the latter.

62. Secondly, Ms. María Elena Loayza-Tamayo was tried and convicted by application of an exceptional procedure in which it is obvious that the fundamental rights embodied in the concept of due process were greatly restricted. Those proceedings do not meet the criteria of a fair trial, since the presumption of innocence was not observed; the defendants were not allowed to challenge or examine the evidence; the defense attorney’s power was curtailed in that he could not communicate freely with his client or intervene in all stages of the proceeding in full possession of the facts. The fact that Ms. María Elena Loayza-Tamayo was convicted in the civil courts on evidence allegedly obtained in the military courts -even though the latter lacked jurisdiction- militated against her on two occasions in the civil courts.

63. Peru, by means of the military courts, breached Article 8(2) of the Convention, in which the principle of innocence is embodied, by accusing Ms. María Elena Loayza-Tamayo of a different crime to the one for which she was prosecuted and convicted, without having jurisdiction to do so, since, in any event, as indicated above (supra, para. 61) that charge could only be brought by the competent civil courts.

64. The Commission contends that Ms. María Elena Loayza-Tamayo was coerced into testifying against herself and admitting that she had participated in the acts for which she was charged. There is no such evidence on the record, for which reason the Court deems that there is no proven violation of Article 8(2)(g) and 8(3) of the American Convention.

65. The Commission requested reparation for Ms. Carolina Loayza-Tamayo, defense counsel for Ms. María Elena Loayza-Tamayo, for the alleged intimidation tactics and false accusations to which she was subjected by DINCOTE. The Court observes that the aforesaid attorney was not listed as a victim in the report submitted to the State by the Commission, in accordance with Article 50 of the Convention, and therefore deems the request to be inadmissible.

XV

66. With regard to the Commission’s complaint of the violation of the judicial guarantee that prohibits double jeopardy, to the detriment of Ms. María Elena Loayza-Tamayo, the Court observes that the principle of non bis in idem is established in Article 8(4) of the Convention in the following terms: An accused person acquitted by a nonappealable judgement shall not be subjected to a new trial for the same cause. This principle is intended to protect the rights of individuals who have been tried for specific facts from being subjected to a new trial for the same cause. Unlike the formula used by other international human rights protection instruments (for example, the United Nations International Covenant on Civil and Political Rights, Article 14(7), which refers to the same “crime”), the American Convention uses the expression “the same cause,” which is a much broader term in the victim’s favor.

67. In the instant Case, the Court observes that Ms. María Elena Loayza-Tamayo was tried in the military criminal courts for the crime of treason, which is closely linked to the crime of terrorism, as may be seen from a comparative reading of Article 2(a), (b) and (c) of Decree-Law Nº 25.659 (crime of treason) and Articles 2 and 4 of Decree-Law Nº 25.475 (crime of terrorism.)

68. Both Decree-Laws refer to actions not strictly defined, so that they may be interpreted similarly within both crimes, in the view of the Ministry of the Interior and the corresponding judges and, as in the case under consideration, of the “Police (DINCOTE) itself.” Consequently, the aforementioned Decree-Laws are contrary to Article 8(4) of the American Convention in this regard.

69. The Special Naval Court, in its judgement of March 5, 1993, which remained in force after all the available appeals had been exhausted, acquitted Ms. María Elena Loayza-Tamayo of the crime of treason, specifying that since there is evidence and signs in the records that suggest liability ? for the crime of terrorism, an unlawful activity codified in Decree Law Number twenty-five thousand four hundred and seventy-five, it is appropriate that a certified copy of all the police and judicial files be remitted to the Provincial Prosecutor ? so that the appropriate authority may take cognizance of them and act in accordance with their legal powers?.

70. The Court does not accept the State’s argument that the judgement of March 5, 1993, “merely finds that the acts attributed to Ms. María Elena Loayza-Tamayo do not constitute the crime of treason, but that of terrorism, [since] the term acquittal used by the Military Justice ? is not used with its usual meaning ?”. In the aforementioned judgement, which concluded a case in which others were also involved, the Tribunal, in referring to some of them, used the phrase “relinquished jurisdiction to consider the case in regard to ?. . “If the judicial intention had been to restrict its ruling to a matter of no jurisdiction, it would have used the same term when referring to Ms. María Elena Loayza-Tamayo. It did not do so, but used the term “acquittal” instead.

71. The Commission submitted copies of several judgements rendered by the military tribunals to demonstrate that, when that jurisdiction deems itself to lack jurisdiction to hear a similar case, it uses the juridical concept of “relinquishment.” In one such case, the Special Naval Court Martial decided “[its r]elinquishment ? in favor of the civil courts, and that the proceedings should be remitted to the District Attorney in charge, inasmuch as they constitute facts relating to the crime of Terrorism, so that it may rule according to its jurisdiction; and they returned them.”

72. The Court observes that the Special Naval Examining Magistrate, in acquitting Ms. María Elena Loayza-Tamayo and other defendants, handed down a judgement using the usual procedure, when he said Administering Justice on behalf of the Nation, weighing objectively the evidence for and against, in exercise of the authority conferred in Article One of Decree-Law twenty-five thousand seven hundred and eight, and Article One of Decree-Law twenty-five thousand seven hundred and twenty-five, in accordance with the Constitutional Law of the sixth of January nineteen hundred and ninety-three. He also ruled the request concerning “the payment of civil reparation inadmissible,” such reparation being proper only when a person is acquitted, and not when the court deems itself to lack jurisdiction.

73. Accordingly, in the firm judgements rendered by the military and civil tribunals in relation to Ms. María Elena Loayza-Tamayo, the grounds for her acquittal and her subsequent conviction were not specified, and can only be determined from the police files and the corresponding charges.

74. Before the military courts, the aforementioned facts were imprecisely stated in Expanded Police Report Nº 049-DIVICOTE 3-DINCOTE of February 25, 1993; more specifically, in the part relating to the charge brought by the Military Prosecutor in the Special Naval Court on March 4 of that year, Ms. María Elena Loayza-Tamayo was accused of [being a member] of the Departamento de Socorro Popular [People’s Assistance Department] of the Peruvian Communist Party Shining Path, and a member of the ‘Leadership Cell,’ and was in charge of elaborating the plans for each campaign or given period, and plan, supervise, control and provide logistical support to the detachments and troops that carry out the various terrorist acts.

?

It was also decided that María Elena Loayza-Tamayo, alias ‘Rita’ [is an author] of the crime of Treason and is covered under Decree-Law Nº 25.659 for the following reasons:

- For having carried out activities for the Communist Party of Peru-Shining Path terrorist organisation, using firearms and explosive devices.

- For being a member of the leadership of the PCP-SL terrorist organization: “Communist,” “Political Command,” “Military Command,” “Activist,” “Combatants,” all designations corroborated in her statements, acts of recognition, and documents seized.

- For belonging to a group dedicated to “annihilating” various persons and as such responsible for selecting targets and planning and executing those actions ?.

- For having consistently demonstrated that she has been ideologically schooled and occupies an important position within the terrorist organization by steadfastly denying her association with it or admitting to as little as possible in order to pretend to be what she is not and prove her alibi in order to avoid being held criminally accountable, which is typical of the members of that organization and reveals their cynicism and fanaticism about preserving their “golden rule” (secrecy and not informing), thus adhering to the tenets of their doctrine.

- It has been established that the properties on which meetings were held to plan, coordinate, pass along instructions from above, evaluate actions, render accounts, and for political ideological indoctrination are the following:

75. The accused was bound over for trial by the Forty-third Criminal Court of Lima on October 8, 1993, on the basis of the same Expanded Police Report. The pertinent part of that order maintained that there being evidence of the commission of the crime of terrorism by the aforementioned defendants; accused of being members of the Peruvian Communist Party -Shining Path- who use terrorist methods for attaining their objectives ?

The same order required DINCOTE to remit the documents, police statements, and attachments to the aforementioned police report, including the statements by Ms. María Elena Loayza-Tamayo, the notification of her arrest, her civil record, the official documentation concerning her domicile, and the documents seized there.

76. The Court deems that in the instant case, Ms. María Elena Loayza-Tamayo was acquitted of the crime of treason in the military jurisdiction, not only because of the technical acceptation of the word “acquittal,” but also because the military court, instead of declaring itself to lack jurisdiction, took cognizance of the facts, circumstances and evidence relating to the alleged acts, evaluated them, and ruled to acquit her.

77. In the light of the foregoing, the Court finds that the Peruvian State violated Article 8(4) of the American Convention with Ms. María Elena Loayza-Tamayo’s trial in the civil jurisdiction for the same facts of which she had been acquitted in the military jurisdiction.

Comment

One may note the phenomenon of labelling. One is called a communist, activist, combatant, terrorist, etc. Such labelling is regularly used as an excuse to invoke state security and limit the rights of individuals. It occurred also in the earlier discussed case of The Law Office of Ghazi Suleiman v. Sudan. There are numerous other examples.